Monday, August 21, 2017

Goluboff and Schragger on Obama's Supreme Court

Risa L. Goluboff and Richard Schragger, University of Virginia School of Law, have posted Obama’s Court? which is forthcoming in The Presidency of Barack Obama: A First Historical Assessment, ed. Julian E. Zelizer (Princeton University Press):

In this chapter for an edited volume on the Obama presidency, we examine Obama’s judicial legacy and specifically his relationship to the Supreme Court. Obama shaped the Court with two important appointments, Sonia Sotomayor and Elena Kagan, thus increasing the number of women on the Court to three. But he was unable to shift the Court dramatically in a progressive direction, despite the death of Antonin Scalia — the intellectual center of the conservative Court — late in Obama’s second term. Obama’s nomination of Merrick Garland, a moderate, was stymied by a recalcitrant Republican-led Senate.

So too, despite a conservative majority on the Court, conservatives’ hopes to change the fundamental terms of the existing constitutional settlement were not realized. Obama’s signature social welfare program — the Affordable Care Act — survived constitutional challenge, while marriage rights were extended to gays and lesbians. The constitutional doctrine the Supreme Court elaborated in the middle of the twentieth century had two essential features: the broad legitimacy of the federal administrative state, especially in the realm of economic regulation, and the judicial protection of civil rights and civil liberties. Those two pillars of Supreme Court jurisprudence mostly survived, even as conservative justices cut back significantly on racial civil rights, expanded gun rights, and extended speech and religious rights to corporations.

With Donald Trump’s election in 2016, Obama lost the appointment that would have shaped the Court for years. Scalia’s replacement, Neil Gorsuch, appears to share Scalia’s judicial approach. Ideologically, the Court looks about the same as it did during Obama’s two terms in office. Trump’s ascendancy, however, raises the possibility that a new appointment will substantially alter what has been a fairly stable, fifty-year constitutional settlement.